specially concurring.
I concur in the result reached by the majority insofar as it holds that male prisoners cannot be subjected to searches by female guards involving touching of genital or anal areas except in emergencies. I do not, however, agree with the grounds on which the majority opinion is based, not only because I believe them to be wrong, but also because they are based upon a theory wholly different from the theory on which the case was both tried and appealed to the Court of Appeals.
1. This court cannot properly decide this case on a theory wholly different from the theory on which this case was both tried and appealed.
This case was tried on the theory that male prisoners have a "right of privacy” which is entitled to protection against searches by female guards involving touching of genital and anal areas. The written opinion by the trial court which provided the basis for its injunction was expressly based upon the prisoner’s constitutional "right of privacy.” The briefs by the parties in the appeal to the Court of Appeals were confined to a debate of that question. The majority opinion by that court affirmed the holding by the trial court that prisoners have a constitutional right of privacy which is violated by such searches. The petition for review, although challenging the correctness of that holding, did not suggest any alternative basis for decision.
On June 25, 1980, this case was argued in this court. Again, the arguments were directed solely to the question whether prisoners have such a constitutional right of privacy. As of December 31,1980, this case was one of the "assigned but unwritten” cases which had been assigned to a member of the court for the writing of a proposed opinion, but for which no proposed opinion had yet *634been written.1 However, by letter dated January 14,1981, from the court to attorneys for the parties, supplemental briefs were requested on the question whether prisoners, instead of having a constitutional "right of privacy,” have a constitutional right to protection against treatment with "unnecessary rigor” under Article I, § 13 of the Oregon Constitution as a basis for protection against such searches. Thus, by that letter this court suggested to the parties a basis for decision of this case different from the basis upon which the case had been decided by either the trial court or the Court of Appeals.
It has been held repeatedly by this court that it will not decide a case on appeal on a theory wholly different than the theory on which, the case was tried. As stated in Edwards, Guardian, v. Hoevet, 185 Or 284, 297, 200 P2d 955 (1949):
"A familiar rule of appellate practice restricts the appellant to the theory he pursued in the trial court. He can not in this court raise issues that he did not present and rely upon in the circuit court: Johnson v. Davidson, 168 Or. 379, 123 P.2d 179; Harlow v. Chenoweth, 158 Or. 343, 75 P.2d 937; Pelton v. General Motors Acceptance Corp., 139 Or. 198, 9 P.2d 128, 7 P.2d 263. We deem it unnecessary to burden this page with additional citations from our reports; the rule just stated is universally applied: * *
As further stated in Stotts v. Johnson and Marshall, 192 Or 403, 420, 234 P2d 1059, 235 P2d 560 (1951):
"The rule prevents the appellant and the respondent alike from reaching out upon appeal for views concerning the facts and the issues which are inconsistent with or different from those which the party took in the trial court. The rule recognizes that an appellate court is a court of review and thus the operation of the rule restricts the scope of review.”
More recent cases in which this rule has been applied by this court include Nordling v. Johnston, 205 Or 315, 340, 283 P2d 994, 287 P2d 420 (1955); Chaney v. Fields Chevrolet Co., 258 Or 606, 613, 484 P2d 824 (1971), and Judson v. Terry Morgan Const., 273 Or 666, 673-74, 542 P2d 1010 (1975).
*635If the adversary process, which is basic to our system of jurisprudence, is to be respected, the fact that this court is now a court of review, rather than a court of direct appeal, cannot properly justify a different result because to hold to the contrary would leave the parties free on petitions for review to propose, if not demand, that this court reverse either the trial court or the Court of Appeals for reasons based upon theories completely different from the theory upon which the case was both tried and appealed to the Court of Appeals.
For these reasons, I cannot concur in the majority opinion in this case because it decides this case on a theory completely different from the theory on which this case was both tried and appealed to the Court of Appeals. In addition, I do not agree with the new theory on which the majority decides this case for additional reasons.
2. The constitutional right of prisoners to be protected from "treatment with unnecessary rigor” as aground to prohibit "pat-down” searches by guards of the opposite sex.
The opinion by the majority is indeed a scholarly opinion. I do not, however, agree with the majority in its holding that prisoners have a constitutional right under Article I, § 13 of the Oregon Constitution to protection against such searches. It may be, for reasons stated by the majority, that to hold that prisoners have a constitutional "right of privacy” is to adopt a concept subject to the criticism that "[a] concept in danger of embracing everything is a concept in danger of conveying nothing,” and that the law should not "pay [such] a price in clarity and cogency,” as stated by the majority.
To me, however, the concept that a prisoner’s constitutional right to be protected against treatment with "unnecessary rigor” is subject to much the same criticism, particularly when extended to what prisoners may consider to be "unnecessary” searches. I am also concerned that to confer upon prisoners a constitutional right to object to such searches may open a Pandora’s Box from which prisoners may, by habeas corpus or otherwise, deluge the courts with litigation based upon claims that many of the rules and practices customary in the operation of penal institutions are "unnecessarily rigorous.”
*636If required to choose between a constitutional "right of privacy” and a constitutional right to object to "treatment” which is "unnecessarily rigorous,” I would choose the former for the reasons stated by the majority opinion of the Court of Appeals, despite its conceptual problems. Indeed, the majority states that:
"It may well be that the interest asserted by the prisoners in this case can be brought within one of the kinds of 'privacy’ said to be protected by unexpressed penumbras of the United States Constitution. See Gunther v. Iowa State Men’s Reform., 612 F 2d 1079 (8th Cir 1980) cert. den. 446 US 966, 100 S Ct 2942, 64 L Ed 2d 825 (1980).” (p. 618-19.)
If, however, some other basis must be found for decision of this case, it is my view that this case can be properly decided without the necessity of finding a constitutional basis for prisoners’ rights, thus "engraving them in stone” beyond the reach of the legislature.
First of all, the right of privacy has a basis in ordinary tort law, subject to protection in civil litigation. By reason of. ORS 137.275 prisoners in Oregon retain all civil rights, including the right to maintain civil actions or suits, "except as otherwise provided by law.”
Furthermore, and aside from the question whether prisoners may have such a "right of privacy,” enforceable by civil actions or suits, the majority calls attention to ORS 421.245, Art. IV(5) and ORS 421.284, Art. IV(e) which require that inmates of correctional institutions "shall be treated in a reasonable and humane manner.” (p. 618). The majority also refers to Federal Standards for Corrections published by the Department of Justice which provide, among other things, that "[a]ll supervision of female prisoners must be by female employees.” (p. 621).
The majority goes on to say:
"That prevailing social standards entitle women to be searched only by female officers is accepted as obvious without evidence of individual attitudes. The superintendent of the Oregon Women’s Correctional Center testified that male guards do not frisk female prisoners.” (p. 624).
and that:
*637"Formal equivalence aside, however, we know no reason to conclude that society denies to men in the prison setting a sense of the proprieties that it imquestioningly grants women in the same setting.” (p. 625).
I am in complete agreement with these statements. Indeed, at the time of oral argument counsel representing the women guards who demand the right to make "pat down” searches of the genitals and anal areas of male prisoners conceded that if male prisoners have no right to object to such searches by female guards, it would follow that female prisoners would have no right to object to such searches by male guards.
My point, however, is that these "standards” provide an ample and proper basis for a holding that to require male prisoners to be subjected to "pat down” searches of genital and anal areas by female guards, except in emergencies, is contrary to the provisions of ORS 421.245 and 421.484, which requires that prisoners "shall be treated in a reasonable and humane manner.” Cf. Gunther v. Iowa State Men’s Reform., 612 F 2d 1079 (8th Cir 1980) cert. den. 446 US 966 (1980), also cited by the majority, (p 619). Such a basis for decision would leave the subject of what is "reasonable and humane treatment” within the control of the Oregon Legislature, subject only to constitutional limitations.
See concurring opinion in State v. Quinn, 290 Or 383, 407, 623 P2d 630 (1981), on the subject of delays in appeals to this court, with comparative statistics.